MEMORANDUM OPINION AND ORDER ON PENDING MOTIONS
On January 30,1990, a number of individuals, Bank Western and the Field Corporation (a subsidiary of Bank Western) (collectively, “Plaintiffs”) filed this class action. These parties live on or hold an interest in real property located near the Rocky Flats weapons production facility northwest of Denver, Colorado (“Rocky Flats”). Rocky Flats is owned by the U.S. Department of Energy. The Dow Chemical Company (“Dow”), operated Rocky Flats from its inception in the early 1950’s to June 30, 1975 and Rockwell International Corporation (“Rockwell”) operated it from the latter date to December 31, 1989.
By order dated October 8,1993, I certified two partially overlapping classes in this litigation, a Property Class under Fed.R.Civ.P. 23(b)(3), consisting of persons owning an interest in real property within a defined area near Rocky Flats as of June 7, 1989, and a Medical Monitoring Class pursuant to Fed. R.Civ.P. 23(b)(2), comprising persons having resided within a slightly larger area near Rocky Flats at any time from 1952 through 1989. Cook v. Rockwell Intern. Corp. (“Cook IV”),
Plaintiffs allege Dow and Rockwell, during their operation of Rocky Flats, released radioactive and non-radioactive substances into the surrounding area which damaged their property and could have adverse impacts on their health. The Second Amended Class Action Complaint (filed on April 8, 1991) seeks class certification and pleads claims under Colorado common law, the Price Anderson Act (which incorporates common law), 42 U.S.C. §§ 2014(hh), 2210, and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. § 9607. Plaintiffs’ identical common law and Price Anderson claims sound in negligence, strict liability, private nuisance, trespass, and outrageous conduct. They seek compensatory damages for the representatives and members of the Property Class; damages “in the form of a fund to finance medical monitoring services,” (Second Am. Class Action Coml. at 28), or in the alternative “medical monitoring and surveillance services in the form of injunctive relief,” (id. at 29), for the representatives and members of the Medical Monitoring Class; response costs under CERCLA; exemplary damages; permanent injunctive relief relating to making public all information necessary to alert the public to the risks posed by Rocky Flats; as well as interest, attorney fees, and costs.
Pending are Defendants’ Combined Motions for Summary Judgment
I. Motion for Decertification of Classes.
In the Order Regarding Class Certification, I discussed the general principles applicable to class certification. See Cook IV,
Dow and Rockwell now seek decertification of both classes. They argue, based on recent federal circuit and district court decisions
Once a class is certified, “the parties can be expected to rely on it and conduct discovery, prepare for trial, and engage in settlement discussions on the assumption that in the normal course of events it will not be altered except for good cause. Sometimes, however, developments in the litigation, such as the discovery of new facts or changes in parties or in the substantive or procedural law, will necessitate reconsideration of the earlier order and the granting or denial of certification or redefinition of the class.” Manual for Complex Litigation Third (1995), § 30.18 at 223. In the certification ruling, I addressed each of the relevant Rule 23 requirements and determined all of the Plaintiffs’ claims “arise from the same set of circumstances, the release of hazardous nuclear and non-nuclear substances from the [Rocky Flats] plant during its operation by Dow and Rockwell.” Cook IV,
A. Bar on Class Certification in Mass Tort Actions.
Defendants argue recent Supreme Court and circuit court decisions bar class certification in mass tort cases. Their reli-anee on Amchem Products, Inc. v. George Windsor, — U.S.—,
Defendants further rely on recent circuit court decisions
A further focus of Defendants is the unpublished decision in Satsky v. Paramount Communications, Inc., No. 90-S-1561, slip, op. (D.Colo. March 13, 1996), a case concerning alleged contamination of the Eagle River, Colorado, downstream from the Eagle Mine,
Defendants also cite Ilhardt v. A.O. Smith Corporation,
There is no absolute bar to class certification in mass tort cases.
B. Decertification of the Medical Monitoring Class under Rule 23(b)(2).
Defendants again argue the medical monitoring claim seeks money damages, not equitable relief, and therefore cannot properly be certified as a Rule 23(b)(2) class. Under this rule, a class action is appropriate when “the party opposing the class has acted or refused to act on grounds generally applicable to the class,” and the representatives are seeking “final injunctive relief or corresponding declaratory relief.” Fed.R.Civ.P. 23(b)(2).
I previously determined the type of relief sought here, a medical monitoring program managed by a court-appointed and court-supervised trustee under which a plaintiff is monitored by particular physicians and the medical data utilized for group studies, constituted injunctive relief. Cook IV,
Building & Construction Department, AFL-CIO v. Rockwell International Corporation was filed by the same attorneys representing Plaintiffs here, at the same time, and raising many similar claims arising out of alleged misconduct of Dow and Rockwell which exposed workers at Rocky Flats to unsafe levels of radioactive and non-radioactive hazardous substances.
In opposing the decertification, Plaintiffs do not address this pivotal decision. Instead, they rely on recent district court decisions holding that a request for a court-supervised medical monitoring program constitutes in-junctive relief and is appropriately certified under Rule 23(b)(2). See, e.g., Yslava v. Hughes Aircraft Co.,
In Boughton v. Cotter Corp.,
Since the initial certification opinion, the Tenth Circuit has stated unequivocally that the identical type of medical monitoring relief to that sought here is “essentially for damages.” Building & Construction Dept. v. Rockwell Int’l Corp.,
C. Requirements of Rules 23(a) and (b)(3).
Because I decertify the medical monitoring class, I consider whether the requirements of Rules 23(a) and (b)(3) are still met with regard only to the Property Class.
1. Commonality and Predominance.
Defendants assert this case presents too many individualized issues and no single common course of conduct to satisfy the Rule 23(a)(2) requirement that “there are questions of law or fact common to the class” and the Rule 23(b)(3) requirement that such common questions predominate over any questions affecting only individual members of the class. They maintain each of the five Property Class representatives’ claims and the evidence related to them present a highly individualized set of circumstances and this would hold true for each of the more than 15,000 parcels in the class. As concerns the misrepresentation and concealment claims, Defendants assert questions of individual reliance and resultant harm predominate over common issues and the statute of limitations may bar some Plaintiffs but not others.
Under the commonality and predominance requirements, the claims of class members need not be factually identical. Indeed, if this were the standard, it would be rare, if even possible, to obtain class certification. Putnam v. Davies,
Plaintiffs’ factual and legal allegations of liability constitute similar common issues that would be a significant part of any individual case. Although the claims for misrepresentation and concealment involve questions of individual reliance and resultant harm and the statute of limitations defense might bar the claims of some Plaintiffs not others, the commonality of impact of the alleged releases outweighs these variances. I conclude the individual issues do not destroy the commonality and predominance requirements.
2. Typicality and Adequacy of Representation.
The same individualized evidence, Defendants maintain, destroys the Rule 23(a)(3) requirement that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Similarly, they aver, the variation in the class representatives’ claims creates a tension between their interests and those of the other class members nullifying the Rule 23(a)(4) requirement that they “will fairly and adequately protect the interests of the class.”
Under Rule 23(a), the threshold for typicality is low and the claims asserted by the class representative need only be typical of, not identical to, those of other class members. Cook IV,
The class representatives’ complete understanding of the legal basis for the claims is not required by Rule 23. See In re Telectronics Pacing Systems, Inc.,
3. Superiority.
Defendants argue the Rule 23(b)(3) requirement applicable to the Property Class certification is not met, namely that a class action be superior to other available methods for the fair and efficient adjudication of the controversy. They maintain recent decisions have focussed on whether claims are “novel” or “ immature,” and if so, have required a sufficient “track record” of previous trials of those claims before certification can be permitted; and have held the severance of “common issues” from the remainder of the case violates the Seventh Amendment. According to Defendants, the individual issues permeating nearly every aspect of this ease would necessitate myriads of “mini-trials” on issues such as exposure, dose, susceptibility to disease, location, lifestyle, contamination, property valuation, notice. This would destroy any purported efficiencies gained from certification. Further, Rule 23 is not satisfied because Plaintiffs have not proposed a structure for trying the case.
Some courts have avoided class actions in the mass accident or tort setting, fearing that differences between individual plaintiffs on issues of liability and defenses of liability, as well as damages, would result in “mini-trials” overshadowing the common disposition for the class. Class certification in this case is, however, superior to the alternative of repeating, hundreds of times over, litigation of common issues. As one commentator has observed: “The case by case mode of adjudication magnifies this burden [of litigating complex issues] by requiring the parties and courts to reinvent the wheel for each claim.” David Rosenberg, Class Actions for Mass Torts: Doing Individual Justice by Collective Means, 62 Ind.L.J. 561, 563-564, 570-571 (1987) (footnotes omitted) (cited in In re Copley Pharmaceutical, Inc.,
While the manageability of the issues in this case will no doubt prove difficult, resolu
4. Adequacy of Class Definition.
In the initial certification decision I rejected Defendants’ class definition arguments as largely focusing on the merits of the case. Cook IV,
II. Dow’s Motion for Summary Judgment on Statute of Limitations Grounds.
Dow seeks summary judgment on all claims against it, asserting Plaintiffs’ claims are time-barred as they had both constructive and actual knowledge of their claims against Dow outside the applicable limitations period. The instant decision is informed by that of Judge Babcock in which he denied Dow’s motion for summary judgment on all claims against it based on the statute of limitations. See Cook v. Rockwell Int’l Corp.,
In October 1996, in striking Dow’s September 20,1996 motion for summary judgment, I noted it was not on the basis that Judge Babcock had already ruled on the statute of limitations issue, as he had stated there were insufficient facts to make that decision at that time. Dow now contends the factual record developed since Judge Babcock’s decision discloses no issue of material fact as to whether Plaintiffs actually knew or should have known of their causes of action.
In considering a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Maughan v. SW Servicing, Inc.,
“It is settled law in the majority of circuits that the issue of when a plaintiff knew or with reasonable diligence should have known of a cause of action is a question of fact for the jury.” Maughan, 758 F.2d at 1387. “Summary judgment cannot be granted unless the evidence is so clear that there is no genuine factual issue.” Id. at 1388 (further quotation omitted). Even a diligent plaintiff inquiring into the hazards posed by radiation
is confronted with a mass of complex, controversial and rapidly changing scientific data and opinions. Lacking the resources and knowledge necessary to carry out their own research into causation, potential plaintiffs must rely on potential defendants — the government and large commercial enterprises — which have the resources to carry out the necessary studies.
Id. at 1385. “The leap from a plaintiffs alleged knowledge of the various news articles to actual or constructive knowledge of his or her cause of action involves factual issues which are inappropriate for summary judgment.” Id. at 1387. I find such leap precludes summary judgment on whether Plaintiffs knew or should have known of the causal connection between the running of Rocky Flats by Dow and their current causes of action.
This case was filed as a Price-Anderson Act “public liability action.”
Colorado law currently prescribes a two-year statute of limitations in actions for negligence, strict liability, trespass, nuisance and outrageous conduct. Colo.Rev.Stat. § 13-80-102 (1997). Insofar as Plaintiffs assert claims against Dow accruing on or after July 1, 1986, this period applies. To the extent that such claims accrued before July 1, 1986, they are governed by the Colorado limitations periods in force at the time of the accrual. Cook I,
Judge Babcock has already determined, under the applicable accrual standard, the limitations period begins to run when the person suffering legal injury knows or in the exercise of reasonable diligence should have known of the injury and its cause. Cook I,
The crux of the complaint is that because of Dow’s tortious behavior, hazardous substances invaded plaintiffs’ property and caused damages. Some plaintiffs live as far as six miles from Rocky Flats. The record does not establish when plaintiffs knew or should have known that hazardous substances allegedly released while Dow was operating Rocky Flats reached their property. Thus, the record does not establish when plaintiffs knew or should have known of their causes of action. Accordingly, Dow’s motion for summary judgment based on the statute of limitations is denied.
Id. at 1483.
Plaintiffs maintain the answer has not changed and the factual question of whether the publicity Dow cites is legally sufficient to uphold a directed verdict in Dow’s favor on its statute of limitations defense remains a jury question. Dow persists there is unre-butted evidence that Plaintiffs had sufficient facts to put them on notice of their claims. It maintains Plaintiffs admitted in their depositions actual knowledge of their claims outside of the limitations period; there are hundreds of newspaper articles from the 1970’s reporting the same allegations that Plaintiffs hope to prove here; there are numerous public investigations and reports, many of which Plaintiffs’ experts rely on, that demonstrate Plaintiffs’ actual and constructive notice; the contamination defining them class was widely publicized beginning February 1970 (the Property Class is defined by a 1970 contamination contour); and Plaintiffs, like those in the Church litigation,
Either actual or constructive knowledge of an action outside the limitations period bars the claim. Ebrahimi v. E.F. Hutton & Co., Inc.,
Dow cites testimony of certain Plaintiffs which it asserts demonstrates that they had actual knowledge of their causes of action against Dow outside the limitations period. For the aforesaid reasons, however, I find genuine issues of material fact, coupled with complex issues of causation, preclude sum
III. Defendants’ Combined Motion for Summary Judgment
Plaintiffs’ trespass and nuisance (“property damage”) claims are for diminution in value of their properties allegedly caused by contamination of the properties through the deposit of plutonium and other hazardous substances upon the surface of Plaintiffs’ properties. Dow and Rockwell seek summary judgment on these claims which, they assert, fail as a matter of law because they are based merely on the publicity and the controversy generated by the 1989 FBI raid of Rocky Flats. Plaintiffs maintain these claims are based on diminution in value of their properties caused by contamination attributable to Dow and Rockwell, rather than by stigma and public perception.
Trespass is “the physical intrusion upon property of another without the permission of the person lawfully entitled to the possession of the real estate.” Burt v. Beautiful Savior Lutheran Church,
Defendants argue Plaintiffs cannot satisfy the requirement of a physical invasion of and entry upon property, because their trespass claim is based on stigma and public perception, nor can Plaintiffs satisfy the element of causation. Plaintiffs assert a prima facie case of trespass exists against both Dow and Rockwell in that each engaged in conduct which resulted in the entry and deposition, without permission, of plutonium and other hazardous substances upon the surface of Plaintiffs’ properties.
“Private nuisance is a non-trespassory invasion of another’s interest in the private use and enjoyment of his land.” Allison v. Smith,
There are countless ways to interfere with the use and enjoyment of land including interference with the physical condition of the land itself, disturbance in the comfort or conveniences of the occupant including his peace of mind, and threat of future injury that is a present menace and interference with enjoyment. The essence of private nuisance is the protection of a property owner’s or occupier’s reasonable comfort in occupation of the land in question. It involves “not only a defect, but threatening or impending danger ... to the property rights or health of persons sustaining peculiar relations to the same.... ”
Adkins v. Thomas Solvent Co.,
Defendants argue Plaintiffs cannot prove, as required, that Defendants unreasonably and substantially interfered with the use and enjoyment of their property. Plaintiffs maintain, by creating an impending threat to their health, safety and property, through physical invasion of their land, and the resultant property stigmatization and loss in value, Defendants have disturbed their reasonable comfort in occupation of their property.
I find genuine issues of material fact exist in the record to date as to the actual physical invasion of Plaintiffs’ land through contamination emanating from Rocky Flats as well as to the severity and impact of the threat from contamination emanating from the
TV. Class Plaintiffs’ Motion for Partial Summary Judgment
Plaintiffs seek summary judgment on the following points: (1) Defendants’ operation of Rocky Flats constituted an abnormally dangerous activity rendering them strictly liable for all harm resulting from that activity; (2) Defendants’ operation of Rocky Flats involved conduct so dangerous to life and property and so abnormal and out of place in its surroundings as to constitute an absolute nuisance, resulting in their being strictly liable on the nuisance claims; (3) Rockwell committed those acts to which it pleaded guilty in United States v. Rockwell Int’l Corp., No. 92-CR-107 (D.Colo.).
In Colorado, one who engages in abnormally dangerous activity is strictly liable for any damages proximately caused to other persons, land, or chattels by that activity. Garden of the Gods Village v. Hellman,
Here, Plaintiffs do not set out relevant undisputed facts warranting a ruling that the activities of Defendants at Rocky Flats were abnormally dangerous. Rather, they rely on cases which have held that processing, use and storage of radioactive materials are abnormally dangerous activities. See, e.g., Silkwood v. Kerr-McGee Corp.,
Similarly absolute nuisance exists in “those nuisance situations which result from abnormal and unduly hazardous activities” or “where the defendant’s pursuit of its own purposes on its own land is clearly an unreasonable act in view of surrounding circumstances.” Northwest Water Corp. v. Pennetta,
V. Defendants’ Motion for Summary Judgment Based on Expert Discovery (filed August 5, 1997) and Class Plaintiffs’ Motion to Strike.
Dow and Rockwell seek summary judgment on the grounds that the undisputed evidence shows (1) Defendants complied with applicable federal standards governing releases of nuclear materials, thus entitling them to summary judgment on all claims brought under the Price Anderson Act; (2) Plaintiffs have not met their baseline burden to demonstrate significant exposure or risk as required to sustain their medical monitoring claims; and (3) Plaintiffs have not adduced evidence sufficient to sustain their nuisance and trespass claims. On August 29, 1997, Defendants’ Motion to Strike Plaintiffs’ Experts was filed, seeking to strike as inadmissible and irrelevant the expert evidence upon which Plaintiffs base their opposition to Defendants’ Motion for Summary Judgment. On November 6, 1997, in response to these motions, Class Plaintiffs’ Motion to Strike Defendants’ Fifth Wave of Dispositive Motions and Defendants’ Related Motion to Strike Plaintiffs’ Experts was filed.
Plaintiffs seek to strike Defendants’ Motion for Summary Judgment filed August 5, 1997 and Defendants’ motion to strike all testimony by all of Plaintiffs’ experts filed August 29, 1997 as untimely and noncompli-ant with the court’s December 1996 deadline. They set out the complex procedural and motions history of the case and cite my remarks at the status conference held on October 2, 1996. On that date, I reluctantly vacated the January 21, 1997 trial date. I struck Defendants’ then pending motions without prejudice and set “a deadline of December 1, 1996 for the defendants to file whatever motions you want, consolidated.” (Status Conference Tr. Proceedings, Oct. 22, 1996 at 4.) I iterated, “December 1 is a deadline for all motions, any and all motions that go to the merits of the litigation.” (Id. at 6.) Counsel representing Dow stated: “I want to make sure that we comply with Your Honor’s concern about motion practice. We have a statute of limitations motion for summary judgment. There’s going to be a property summary judgment motion that we refer to in our papers, and I clearly understand the Court’s injunction to file those by December 1.” (Id. at 22.)
Nevertheless, on August 5, 1997, eight months after the deadline, Defendants, without seeking leave, filed three additional motions for summary judgment. Apparently cognizant of the motions’ untimeliness, Defendants assert the motions are reliant on the deposition testimony of Plaintiffs’ experts taken between December and May of 1997. They do not deny that they had possession of Plaintiffs’ expert reports as of the December 1996 deadline but maintain they could not have filed the motions for summary judgment based on the experts’ opinions within eight business days after receiving the voluminous reports.
In light of the clear order at the October 22, Í996 status conference, I strike Defendants’ summary judgment motions filed on August 5,1997.
VI. Defendants’ Motion to Strike Plaintiffs’ Experts (filed August 29, 1997) and Class Plaintiffs’ Motion to Strike.
Defendants seek to strike Plaintiffs’ “three core experts,” Robert Goble, John Radke and Wayne Hunsperger on the grounds that their opinions in their reports and depositions do not meet the standards for the admissibility of expert testimony. They also seek to strike as irrelevant Plaintiffs’ remaining experts. In doing so, Defen
VII. Defendants’ Motion under Rule 87(c)(1) to Preclude Testimony of Plaintiffs’ Expert Witness, Dr. John Radke, based upon findings of Magistrate Judge Borchers that Plaintiffs have violated Rule 26(a)(2) (filed April 21, 1998).
On March 31, 1998, Magistrate Judge Borchers entered an order, inter alia, granting in part and denying in part Defendants’ motion to compel the production of material relied on by John Radke, Ph.D. Plaintiffs retained Dr. Radke to examine the property values of land and buddings near Rocky Flats. Dr. Radke completed his report in 1996 entitled “Measuring the Effects of Proximity to the Rocky Flats Nuclear Weapons Plant on Property Values.” He is one of five experts designated by Plaintiffs to support their allegation that real estate in the class diminished in value as a result of proximity to Rocky Flats. After receiving Dr. Radke’s report, counsel for Defendants requested documentation and information used in its preparation. Various communications took place and, while Plaintiffs provided some materials, no resolution was reached in relation to certain requests.
Dr. Radke’s deposition commenced on March 31, 1997. Defendants filed their motion to compel together with requests for a protective order to preclude the deposition of Daniel McFadden, Ph.D. until Plaintiffs produced all requested documents and for sanctions and attorney fees. The magistrate judge denied the motion insofar as it sought to compel certain requested computer files, X-Y coordinates, dates of transactions used in “Phase 1” and “Phase II,” and output from regressions, on the grounds that such data did not exist. He stated in relation to the dates of transactions used in “Phase I” and “Phase II,”. that if I were to conclude that certain information underlying the results of Dr. Radke did not exist, and that his work could not be replicated, I might preclude the admission of results. The magistrate judge deferred the request for sanctions under Fed.R.Civ.P. 37, stating they were available only where the court found there to have been a violation of a discovery order. In light of the non-existence of the material sought and the resultant denial of the major part of the motion to compel, a sanction under Rule 37 was “not available at this time.” (Mem.Op. & Order March 31,1998 at 9.)
Defendants now seek to preclude the use of Dr. Radke’s testimony at trial or in responding to summary judgment motions. They assert the magistrate judge made all findings necessary to determine that Plaintiffs, without substantial justification, have failed to disclose information as required by Rule 26, thus triggering the automatic preclusion sanction of Rule 37(c)(1).
Defendants correctly point out that Rule 37(c)(1) precludes the use of undisclosed evidence “at trial, at a hearing, or on a motion.” They cite the Tenth Circuit’s observation that “a trial court should determine whether an expert’s testimony would be admissible at trial before considering that testimony in ruling on a motion for summary judgment.” Powell v. Fournet,
VIII. Conclusion.
For the aforesaid reasons, I grant Defendants’ motion for decertification of the Medical Monitoring Class, but deny it as regards the Property Class. Accordingly,
IT IS ORDERED THAT Defendants’ Motion for Class Decertification is GRANTED with regal’d to the Medical Monitoring Class, which is hereby decertified, and is DENIED with regard to the Property Class;
IT IS FURTHER ORDERED THAT Dow’s motion for summary judgment on statute of limitations grounds is DENIED;
IT IS FURTHER ORDERED THAT Defendants’ Combined Motion for Summary Judgment on Plaintiffs’ trespass and nuisance claims is DENIED;
IT IS FURTHER ORDERED THAT Class Plaintiffs’ Motion for Partial Summary Judgment is DENIED;
IT IS FURTHER ORDERED THAT Plaintiffs’ Motion to Strike Defendants’ Fifth Wave of Dispositive Motions and Defendants’ Related Motion to Strike Plaintiffs’ Experts is GRANTED;
IT IS FURTHER ORDERED THAT Defendants’ Motion for Summary Judgment based on Expert Discovery and Defendants’ Motion to Strike Plaintiffs’ Experts are STRICKEN;
IT IS FURTHER ORDERED THAT Defendants’ Motion under Rule 37(e)(1) to Preclude Testimony of Plaintiffs’ Expert Witness, Dr. John Radke is DENIED;
IT IS FURTHER ORDERED THAT Plaintiffs shall file a revised Class Notice consistent with this opinion on or before August 20,1998.
Notes
. This includes Dow’s motion on statute of limitations grounds and a combined motion of the Defendants on the trespass and nuisance claims.
. The Medical Monitoring Class is defined as: "All natural persons residing or having resided during the operating history of Rocky Flats within the boundaries of the Medical Monitoring Class Area.” Cook IV,
. The Property Class is defined as: "All Persons and entities owning an interest (including mortgagee and other security interests) in real property situated within the Property Class Area, exclusive of governmental entities, defendants, and defendants' affiliates, parents, and subsidiaries." Cook IV,
. Defendants cite Valentino v. Carter-Wallace, Inc.,
. Some courts trace their reluctance to apply Rule 23 to mass exposure cases to the following statement in the Advisory Committee Notes to 1966 Amendment to Fed.R.Civ.P. 23(b)(3) ("Notes”): "A 'mass accident' resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways.” The Notes have, however, been the subject of considerable criticism by courts and legal commentators, including the authors of the original Notes. See, e.g., Bruce H. Nielson, Was the 1966 Advisory Committee Right?: Suggested Revisions of Rule 23 to Allow More Frequent Use of Class Actions in Mass Tort Litigation, 25 Harv.J. on Legis. 461, 461-62 (1988) (praising judges who have certified class actions in the mass product liability context despite the admonition of Rule 23, because the notes do not recognize the practical problems inherent in bringing individual actions in mass tort litigation). A member of the Advisory Committee has stated: "I am profoundly convinced now that [saying that mass torts are inappropriate for class certification] is untrue. Unless we can use the class action and devices built on the class action, our judicial system is simply not going to be able to cope with the challenge of the mass repetitive wrong....” Herbert Newberg & Alba Conte, Newberg on Class Actions, § 17.07, at 17-20 (3d ed.1992) (citing Professor Charles Alan Wright, In Re: School Asbestos Litigation Master File 830268 (ED Pa) Class Action Argument, July 30, 1984, Tr. 106).
. Day v. NLO, Inc.,
. The designated district court case number of Building & Construction Trades Department, AFL-CIO v. Rockwell International Corporation was 90-B-180, with the case being assigned to Judge Lewis T. Babcock. The related instant case was also initially assigned to Judge Babcock but was later reassigned to me.
. Judge Babcock granted summary judgment for Defendants in Building & Construction Trades Department, AFL-CIO v. Rockwell International Corporation,
. Plaintiffs sued on their own behalf and as representatives of present and former Rocky Flats employees, but no certification issued before the dismissal of the case. See Building & Constr. Trades Dep’t,
. The doctrine of "Prudential mootness” holds that "in some circumstances, a controversy, not [constitutionally] moot, is so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant.” Building & Constr. Dep’t v. Rockwell,
. Under the Price-Anderson Act, the term "public liability action" means any suit asserting "public liability,” which, in turn, is defined as “any legal liability arising out of or resulting from a nuclear incident.” 42 U.S.C. § 2014(w). "Nuclear incident” is defined as “any occurrence ... causing ... bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of [nuclear materials].” 42 U.S.C. § 2014(q).
. The Church lawsuit, filed in the 1970's, also alleged offsite contamination from Rocky Flats. See Good Fund, Ltd. — 1972 v. Church,
. I reject Defendants' argument that Plaintiffs' motion is procedurally defective in that, contrary to the dictates of Rule 56, it does not seek to resolve any single claim in the lawsuit in its entirety. Rule 56(a) provides a party may seek summary judgment upon "all or part” of a claim. Additionally, Rule 56(d) slates a court may "make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.” Fed.R.Civ.P. Rule 56(d). "[I]t is now well established that a court may 'grant' partial summary 'judgment' that establishes the existence or nonexistence of certain facts, even though no actual judgment is entered on a claim.” 11 J. Moore, Moore’s Federal Practice 1156.40[2] at 56-279 (3d ed.1998) (footnote omitted). “A partial summary judgment ruling may dispose of only a single issue relevant to a claim.... In availing itself of the ability granted by Rule 56 to issue orders which resolve significant questions, a court can focus the litigation on the true matters in controversy.” Id. at 56-280 to 56-281.
. I do not reach Defendants' argument that the 1988 amendments to the Price-Anderson Act preclude state law strict liability claims nor that they cannot he held strictly liable for conducting
. Thus, Defendants seek to strike Dr. Radke's opinion both in this motion (for failure to comply with Rule 26) and in their August 29, 1997 motion (based on lack of qualification and the resulting methodological errors in his report).
. The facts relied on and relief sought in this motion are identical to the facts considered and the relief denied by the magistrate judge. Defendants' more appropriate course of action would have been to seek reconsideration or to file an objection to the magistrate judge's denial of Rule 37(1) sanctions.